'A Gilded Cage Is Still A Cage’ (Deprivation of Liberty in Residential Special Schools/Colleges)by Joshua Garrod

In this article I am going to focus on the living arrangements made for mentally incapacitated people in educational placements and whether they amount to a Deprivation of Liberty (‘DOL’).

Although a DOL may most commonly be associated with people who are held in custody for committing a criminal offence, there are a wide variety of settings in which a mentally incapacitated person may also be deemed to have been deprived of their liberty, including, amongst others, care homes, hospitalsand residential schools/colleges. Importantly, this can be true even where it is agreed by all concerned that those living arrangements are made in a person’s best interests (I will come back to this later).

This issue is not simply a question of semantics, but has important legal ramifications; if a mentally incapacitated person’s living arrangements are deemed a DOL then the placement has to be legally authorised, which may require a court order (most often from the Court of Protection) or an authorisation under procedures known as Deprivation of Liberty Safeguards (DOLS - which are set out in The Mental Capacity Act 2005).

Significantly for those concerned with SEND law, there is, at present, no precedent for a SEND Tribunal itself authorising a DOL; it remains unclear as to what should happen if, for example, following an appeal, a SEND Tribunal should rule that a mentally incapacitated young person is required to attend a residential special school which would deprive them of their liberty. What is a Deprivation of Liberty?Before looking at the implications of DOL law on SEND Tribunal cases, it is necessary to establish what a DOL actually is. Unfortunately, there is no clear statutory definition of what constitutes a DOL and professionals must instead have regard to the DOL Code of Practice, relevant case law and legal guidance when determining whether particular circumstances amount to a DOL (for further information, please see Identifying a Deprivation of Liberty: A Practical Guide by The Law Society).[1]However, we are helped by a landmark case which was issued by the Supreme Court in March 2014, commonly referred to as Cheshire West, which has helped to clarify the meaning of DOL. There is not enough space here to discuss all the facts of the case, suffice to say that it involved dispute over whether the living arrangements for three mentally incapacitated people (referred to as MIG, MEG and P) amounted to a DOL; MIG was living with a foster mother, MEG was living in a residential NHS home and P was accommodated in a Local Authority bungalow. All three received intensive support and were not free to leave the settings on their own. The Supreme Court found that all three individuals had been deprived of their liberty. In coming to the decision, Lady Hale, who gave the leading judgment, developed an ‘acid test’ (based on previous case law) for determining whether a mentally incapacitated person is deprived of their liberty. The test requires that two points must be satisfied if a placement amounts to a DOL:

Is the person under constant supervision and control; and

Are they free to leave?

If both of these conditions are met, then the individual can be said to be deprived of their liberty. Significantly, Lady Hale also specifies factors which are irrelevant to the question of whether a mentally incapacitated person had been deprived of their liberty, including:

The person’s compliance or lack of objection;

The relative normality of the placement; and

The purpose behind their being placed there.

It is clear from the above that even if a mentally incapacitated person appears content with their living arrangements, the arrangements are comfortable and all those working with them agree that the placement makes the person’s life as enjoyable as it could possibly be, this should make no difference to the objective determination of whether it is a DOL – ‘a gilded cage is still a cage’.In concluding her judgment, Lady Hale states that:

‘...because of the extreme vulnerability of people like P, MIG and MEG, I believe that we should err on the side of caution in deciding what constitutes a deprivation of liberty in their case’.In critical discussion of the decision, it is widely agreed that this has led to a broadening of the number of circumstances which may be considered a DOL and, accordingly, to a significant increase in the number of applications to the Court of Protection to authorise such placements/implementations of the DOLS. What are the practical implications of this decision for those with SEND being educated in residential placements?Cheshire West was not dealing with placements at residential special schools/colleges specifically. However, it is clear from the decision that such settings may be capable of depriving a person of their liberty – it is conceivable that a mentally incapacitated person at such a setting would (understandably) need to be under constant supervision and control and not free to leave the placement.[2] As discussed above, the relative benefits of the placement have no bearing on whether factually it amounts to a DOL. As alluded to in the introduction, this could potentially have a significant impact on the outcome of SEND Tribunal appeals concerning residential placements. Say, for example, that the parents of a mentally incapacitated person who is over the age of 18 (‘C’) are bringing an appeal on C’s behalf seeking a residential placement to be named in Section I of C’s EHC plan. The residential placement will be for 52 weeks of the year and for his own protection and that of others, C would be under constant 1:1 supervision & control and would not be free to leave the placement.

The LA argued that it would not be in C’s best interests and therefore should not be authorised. Could the SEND Tribunal on its own then authorise such a placement, knowing that it would amount to a DOL, or would this require a separate Court of Protection order? If the latter is true, this could lead to lengthy delays in the authorisation of such a placement, given the workload which the Court of Protection has to deal with. What happens next?It is anticipated that this issue may become increasingly common, especially given that EHC plans now run to 25 years of age and, as such, SEND Tribunals will increasingly be asked to determine where people over the age of 18 should be placed (it is more likely that an educational placement would be deemed a DOL for someone over the age of 18, than those younger).

For now, we will have to wait for further litigation on this issue to determine whether SEND Tribunals can authorise such placements. [2]Please see Chapter 9 of the Law Society Guidance on Identifying a DOL for specific examples of this.